Month: November 2015

Legal Issues when someone has Dementia – “Less Restrictive Alternatives” analysis in Guardianship Hearing

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This week’s blog continues the discussion of Legal Issues when someone has Dementia.  The introductory installment (April 30, 2015) put forth the issue of “Who can speak for someone with dementia?”  The May 14, 2015 installment discussed the situation where the person with dementia has Advance Directives in place.  The May 21, 2015 installment discussed the legal issues in determining whether a dementia sufferer can choose to have new Advance Directives prepared.  The May 30, 2015 installment discussed options in preparing a Health Care Power of Attorney.  The June 4, 2015 installment discussed how to decide whether to prepare a Living Will.  The June 11, 2015 installment discussed some of the basic issues in preparing a General Power of Attorney.  The June 18, 2015 installment discussed the importance of making the General Power of Attorney “durable.”  The June 25, 2015 installment discussed the importance of NOT making the General Power of Attorney “springing.”  The July 2, 2015 installment discussed revoking prior Powers of Attorney.  The July 9, 2015 installment discussed Do Not Resuscitate orders.  The July 16, 2015 installment discussed the Right of Disposition designation.  The July 23, 2015 installment discussed the Will (or Last Will and Testament.)  The July 31, 2015 installment discussed beneficiary designations on life insurance policies, IRAs, annuities, etc.  The August 6, 2015 installment discussed whether to pre-plan a funeral.  The August 14, 2015 installment discussed choosing a final resting place.  The August 28, 2015 installment discussed pre-planning the funeral ceremony.  The September 3, 2015 installment discussed when and how to pay for the pre-planned funeral.  The September 10, 2015 installment discussed medical insurance choices.  The September 17, 2015 installment discussed long term care insurance.  The September 24, 2015 installment discussed how an elder law attorney can help.  The October 1, 2015 installment introduced the concept of guardianship.  The October 8, 2015 installment discussed the application process for guardianship.  The October 22, 2015 installment discussed the family disputes that can arise during a Guardianship proceeding.  The November 12, 2015 installment discussed the Probate Court’s examination of the alleged incompetence of the proposed ward in a guardianship proceeding.  Today’s installment will discuss the Probate Court’s examination of “less restrictive alternatives” to guardianship.

When a person’s dementia-causing disease has taken away the decision-making ability and the person has not prepared advance directives appointing someone else to make decisions, the next legal alternative is guardianship.  To establish a guardianship, a Probate Court must determine that the proposed ward (the person with the dementia-related disease) is, in fact, incompetent (i.e., unable to handle his or her own affairs because of a mental impairment) as discussed last week.  If the court determines incompetence, the court must then determine if there is a less restrictive alternative available.

The probate court looks for alternatives because, frankly, managing a guardianship relationship can be a pain in the butt for the guardian, the ward, the ward’s family, and the probate court.  Imagine balancing your checkbook and then having the probate court double-check your work.  That is a fair description of the financial side of a guardianship.  (As a practical matter, the probate court might start with the “less restrictive alternative” analysis because it’s easier and less emotionally charged than the incompetency decision.)

The classic example of “less restrictive alternative” is the existence of valid Powers of Attorney, both for business decisions and health care decisions.  If the proposed ward had planned ahead for his or her own possible incompetency, he or she might have put in place these Powers of Attorney (as discussed in the May 14, 2015 installment.)  If, however, as discussed previously, there are disputes on the validity of the Powers of Attorney, the probate court may have to rule that they are not good alternatives, even if less restrictive than a guardianship.  (These disputes can be especially ugly when the Powers of Attorney were prepared only recently (i.e., at a time when the proposed ward was probably already suffering from the dementia-causing disease.)  Perhaps the ugliest version of these disputes is when the recent Powers of Attorney replace and revoke older Powers of Attorney, from obviously long before the dementia-causing disease had started.)

In a more frequent, and difficult, situation, the dementia sufferer resides in a secure dementia unit but has not adapted to staying on the unit.  Perhaps the resident frequently tries to elope and does not respond to distraction or redirection techniques.  Perhaps, the resident becomes belligerent and physical or exhibits other difficult behaviors.  As a matter of law, unless a probate court has declared that resident to be incompetent, the resident has the legal right to leave.  Leaving, however, may not be a safe situation for the resident.  Even if the resident has Powers of Attorney in place, the Agent named in those Powers of Attorney does not have the legal authority to make the resident (the Principal in the Powers of Attorney) stay on the dementia unit.  The Powers of Attorney do not take away the Principal’s legal authority to make his or her own decisions.  The Powers of Attorney merely empower the Agent to make certain decisions in the place of the Principal or for the convenience of the Principal.  If the Principal makes a different decision (wanting to leave a secure unit, for example,) the Agent is not legally authorized to overrule the Principal.  In such a situation, existing Powers of Attorney do not provide a sufficient alternative to a guardianship.  A guardian the legal authority to make the ward (the person with dementia) stay on the secure unit.

NOTE:  Do not expect a blog installment next week (Thanksgiving.)

Legal Issues when someone has Dementia – “Incompetence” Determination in Guardianships

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This week’s blog continues the discussion of Legal Issues when someone has Dementia.  The introductory installment (April 30, 2015) put forth the issue of “Who can speak for someone with dementia?”  The May 14, 2015 installment discussed the situation where the person with dementia has Advance Directives in place.  The May 21, 2015 installment discussed the legal issues in determining whether a dementia sufferer can choose to have new Advance Directives prepared.  The May 30, 2015 installment discussed options in preparing a Health Care Power of Attorney.  The June 4, 2015 installment discussed how to decide whether to prepare a Living Will.  The June 11, 2015 installment discussed some of the basic issues in preparing a General Power of Attorney.  The June 18, 2015 installment discussed the importance of making the General Power of Attorney “durable.”  The June 25, 2015 installment discussed the importance of NOT making the General Power of Attorney “springing.”  The July 2, 2015 installment discussed revoking prior Powers of Attorney.  The July 9, 2015 installment discussed Do Not Resuscitate orders.  The July 16, 2015 installment discussed the Right of Disposition designation.  The July 23, 2015 installment discussed the Will (or Last Will and Testament.)  The July 31, 2015 installment discussed beneficiary designations on life insurance policies, IRAs, annuities, etc.  The August 6, 2015 installment discussed whether to pre-plan a funeral.  The August 14, 2015 installment discussed choosing a final resting place.  The August 28, 2015 installment discussed pre-planning the funeral ceremony.  The September 3, 2015 installment discussed when and how to pay for the pre-planned funeral.  The September 10, 2015 installment discussed medical insurance choices.  The September 17, 2015 installment discussed long term care insurance.  The September 24, 2015 installment discussed how an elder law attorney can help.  The October 1, 2015 installment introduced the concept of guardianship.  The October 8, 2015 installment discussed the application process for guardianship.  The October 22, 2015 installment discussed the family disputes that can arise during a Guardianship proceeding.  Today’s installment will discuss the Probate Court’s examination of the alleged incompetence of the proposed ward in a guardianship proceeding.

When the person’s disease has taken away the decision-making ability and the person has not prepared advance directives appointing someone else to make decisions, the next legal alternative is guardianship.  A guardianship proceeding forces the Probate Court to determine whether the proposed ward is, in fact, unable to handle his or her own affairs.  Such a finding is called “incompetence” in eyes of the law.

In determining whether the proposed ward is incompetent, the probate court must decide whether the person is “so mentally impaired [as to be] incapable of  taking proper care of the person’s self or property.”  (Ohio Revised Code section 2111.01(D))  If the application for guardianship has an accompanying statement from a health care professional supporting the applicant’s claim that the proposed ward is incompetent and the court investigator supports the claim of incompetence, the court must have a hearing.

In order to rule that the proposed ward is incompetent, the court must receive “clear and convincing evidence.”  Anything short of “clear and convincing” is not enough to judge someone incompetent (in Ohio, anyway.)  How tough is the “clear and convincing” standard?  If you hit me with your car and I sue you for car repairs and medical costs, I must give the court evidence that shows the collision to be, more likely than not, your fault.  This more likely than not is called “preponderance of the evidence.”  Any evidence that leaves the court more than 50% convinced that the collision was your fault allows the court to rule in my favor.  Now, let’s imagine that the county prosecutor believes that you hit me on purpose and wants to imprison you for attempted murder or vehicular assault or any other crime he or she can find to fit the circumstances.  The prosecutor must convince the court more than the “preponderance of the evidence” standard.  To convict you of a crime, the prosecutor must convince the court that you intended to hit me by providing evidence that leaves the court “beyond a reasonable doubt” that you wanted to hit me.  Unless you’ve never seen Perry Mason or Law & Order, I suspect that you have some familiarity with “beyond a reasonable doubt.”  While the law does not assign a percentage on how sure the court must be to find something “beyond a reasonable doubt,” I describe it as 75% sure.

Actually, there is a real life example of the difference between “beyond a reasonable doubt” and “preponderance of the evidence.”  O.J. Simpson was not penalized criminally for his alleged murder of Nicole Brown Simpson and Ronald Goldman because the jury in the criminal court was not convinced beyond a reasonable doubt that he killed the victims.  The Goldman family, though, sued Mr. Simpson for its personal losses from the death of Mr. Goldman, and the court in this civil case ruled that the Goldman family had proved by a “preponderance of the evidence” that Mr. Simpson had killed Mr. Goldman.  As a result, Mr. Simpson didn’t go to prison for murder, but virtually his entire net worth (and future earnings) were awarded to Mr. Goldman’s family.  The difference was the burden of proof.

“Clear and convincing evidence” is even stricter than “beyond a reasonable doubt.”  Unfortunately, I can’t think of any examples, in real life or in fiction, to demonstrate “clear and convincing evidence.”  However, I describe it as 90% sure.  (As a public policy concern, it takes less proof to send someone to prison or even to the death penalty than it does to declare someone incompetent to handle his or her own affairs.)

As a practical matter, the standard of proof does not matter if the proposed ward does not oppose the guardianship request.  If there is no opposition, the medical statement attached to the application and the probate court investigator’s findings provide enough evidence for the court to make a ruling.  If the proposed ward opposes the guardianship request but does not receive help from family members or friends, the probate court can get a pretty good look at how the proposed ward handles himself or herself and can make a reasoned determination on the proposed ward’s ability to “take proper care” of himself or herself.  If, though, a family member or friend helps the proposed ward oppose the guardianship request, the “clear and convincing evidence” standard is such a high hurdle that the guardianship application can usually be defeated.  The involvement of the family member or friend can help a proposed ward, even a proposed ward who should be declared incompetent, avoid (metaphorically) stumbling over himself or herself in court.

“My Care Ohio” Enrollment for 2016

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My Care Ohio enrollment is back.  Ohioans on both Medicare and Medicaid were first enrolled into My Care Ohio in May, June, and July 2014.  These “dual eligible” (better described as “dual covered”) Ohioans were renewed around this time in 2015,and Ohioans who have become covered by both Medicare and Medicaid have been added to the program as they receive that dual coverage.

My Care Ohio is a system of “managed care” for people on both Medicare and Medicaid in the populous areas of Ohio.  It is an attempt to control the state’s costs for long term care paid from the state budget.

When the implementation of My Care Ohio started in 2014, the February 22, 2014 blog post tried to provide an overview on how the My Care Ohio program was supposed to work.  The February 28, 2014 blog post explained how My Care Ohio is an attempt to cut costs through insurance company command and control methods rather than empowering people to choose lower cost care by making it easier to qualify for in-home care Medicaid through PASSPORT or for the Assisted Living Waiver instead of maintaining the current financial incentive to choose a nursing home, with its higher cost per person  The March 7, 2014 installment described the decisions that “dual eligibles” must make when My Care Ohio comes to their county:  (1) whether to accept managed care for Medicare for this first year; (2) which Managed Care Organization to join; and (3) whether to accept managed care for Medicare for years two and three.  The March 13, 2014 installment outlined what to choices to make when enrolling in My Care Ohio.  When all of 2014’s enrollees were placed into the My Care Ohio program, the July 4, 2014 installment described how enrollees could minimize the likelihood that needed care services would be cut by opting out of Medicare participation in My Care Ohio.

Now that it’s time to make enrollment decisions for My Care Ohio for 2016, I want to revisit the strategies that dual-covered Ohioans should use.

My biggest fear for people in the My Care Ohio program is that their managed care organization (i.e., the insurance company to which they are assigned) will reduce services that the managed care organization/insurance company deems unnecessary as a way to cut costs.  (We’ll call the managed care organization/insurance company the “MCO.”)  For example, if the person is in a nursing home and is doing well, the MCO might decide that the person can go home and receive home care (with a resulting big reduction in costs.)  In fact, friends of mine who work in nursing homes have described a number of such discharges triggered by MCOs.  Unfortunately, without the 24 hour care that a nursing home provides, these discharged seniors are at great risk to their health and well-being.  Some of them will likely die.

The best protection against unwise cuts in services is the personal doctor.  My fear is that a doctor could feel pressured by the MCO that pays the doctor’s fee to comply with an MCO decision.  Because the doctor gets his or her payment from the MCO, the doctor may be hesitant to question or oppose the MCO’s decision to reduce services.

To avoid MCO influence over the doctor, I urge all people in the My Care Ohio program to:

– Opt out of the Medicare portion of My Care Ohio;
– Find out which MCO works best with the care providers (other than the doctor) that you would like to use and enroll with that MCO; and
-Choose a Medicare supplement (not an Advantage Plan) from an insurer that is not one of the MCOs in the My Care Ohio program.
– If you can’t get a supplement, then get the best Advantage Plan you can find, just make sure it’s not from a My Care Ohio MCO.

For example, a person who can choose between United Health Care  and CareSource as their MCO (as in Summit County where I live) would look at these insurers’ provider lists for the care providers that they prefer.  Then, the person would tell Ohio Medicaid that they choose to OPT OUT of Medicare’s participation in My Care Ohio.   Then the person would sign up for a Medicare supplement with a company other than United or CareSource.  (Get the supplement enrollment done before December 7.)  After taking these steps, the person’s doctor is paid by someone other than the MCO and would be immune to perceived pressure from the MCO to acquiesce to questionable care decisions.

Remember, in this third year of My Care Ohio, the program assumes that Medicare will be opted into My Care Ohio.  You must take steps to notify the program that you choose to opt out for Medicare.